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On 6 July 2009, the UK's financial services regulator, the Financial Services Authority (FSA), continued its "credible deterrence philosophy" by issuing a consultation paper (CP09/19) outlining proposals to change its current policy on determining the level of civil financial penalties imposed for regulatory breaches. These new proposals are consistent with the FSA's other recent indications that it can no longer be seen as a light-touch enforcer (see our previous client update: "The UK Financial Services Authority Demonstrates "Credible Deterrence Philosophy" with Prosecutions").What is somewhat startling about the FSA's proposals is quite how harsh they could potentially be in practice, for both corporations and individuals, but particularly for indivi
Client Alert | July 10, 2009
On June 10, 2009, the Securities and Exchange Commission ("SEC") released a proposal to amend the SEC's proxy rules to permit shareholders to nominate directors in a company's proxy materials (also known as "proxy access"). This significant proposal has the potential to dramatically change the manner in which corporate directors are nominated and elected. The proposal contains extensive requests for comment, and the SEC Commissioners have urged interested parties to provide feedback on the proposal. This alert discusses significant aspects of the proposal upon which companies and directors may wish to comment. The comments received on these issues are likely to have a substantial effect on any final rules adopted by the SEC. Accordingly,
Client Alert | July 10, 2009
Without question, the first six months of 2009 have been a period of sharply increased enforcement activity at the Securities and Exchange Commission. The financial crisis, the new administration, new SEC leadership, increased funding and the focus of Congress and the media have all combined to encourage heightened government scrutiny. And even though it has only been a few months since a new Chairman took office, already there are tangible signs that the SEC has taken a more aggressive enforcement posture. In this alert, we review the changes the new SEC leadership has instituted and is considering, the observable impact of the new administration on enforcement activity and significant cases in key areas that reflect the agency's evolving enforcement program.I.
Client Alert | July 9, 2009
DPAs and NPAs, Too Much of A Good Thing?Although virtually unheard of a decade ago, Deferred Prosecution Agreements ("DPAs") and Non-Prosecution Agreements ("NPAs") are a growing phenomenon in corporate prosecutions. Essentially, DPAs and NPAs are agreements whereby the government agrees not to prosecute a corporation so long as the corporation abides by the terms of the agreement. The key distinction between a DPA and an NPA is whether or not charges are filed against the corporation: with a DPA the government files criminal charges with the court, while with an NPA nothing is filed with the court so long as the corporation completes the terms of the agreement--the agreement is strictly between the government and the corporation.Following the collapse
Client Alert | July 8, 2009
Sanctions Cases Double Over 2008; Courts Continue to Press for Cooperation; E⁃discovery Trends in Criminal and Constitutional LawA comprehensive review of more than sixty federal and state court opinions addressing e-discovery issued during the first five months of 2009 reveals a dramatic increase in the frequency with which courts consider and apply sanctions. In part, the increase in sanctions reflects solidifying legal standards governing when a potential litigant must preserve electronic evidence. These opinions also reflect a continuing effort by the courts to urge litigants and their counsel to cooperate in e-discovery matters, and to sensibly and proportionately develop e-discovery protocols. Highlights of 2009 to date include: More than half of the e-disco
Client Alert | July 8, 2009
Gibson, Dunn & Crutcher LLP is closely monitoring risks and opportunities arising from the recent and dramatic reshaping of our capital and credit markets. We are providing updates on key transactions as well as regulatory and other legal developments that we believe could prove useful as financial institutions, investors, financial sponsors and other entities navigate these transformative times.On July 2, 2009, the FDIC Board approved the issuance of a proposed policy statement on qualifications for failed bank acquisitions. The proposed statement is intended to provide guidance to private capital investors interested in acquiring or investing in the assets and liabilities of failed banks or thrifts. The FDIC set out nine specific questions for comment, including whe
Client Alert | July 7, 2009
As the inauguration of Barack Obama in January 2009 ushered in a new U.S.
Client Alert | July 7, 2009
Dallas partner M. Sean Royall, Denver associate Amanda Tessar and Washington, D.C. associate Adam J. Di Vencenzo are authors of "Deterring 'Patent Ambush' in Standard Setting: Lessons from Rambus and Qualcomm" [PDF] published in the Summer 2009 issue of ABA's Antitrust.Reprinted with permission from Antitrust, Vol.
Client Alert | July 7, 2009
At the mid-point of 2009, the dominant trends in criminal antitrust have been dramatically increased fines and prison terms, both in the United States and abroad, particularly for cartel conduct. Highlights of 2009 include:U.S.
Client Alert | July 6, 2009
In previous client updates ("UK House of Lords confirms the limitations of the economic torts of intentionally causing economic loss" and "English Court of Appeal clarifies economic tort of conspiracy"), we discussed two landmark judgments concerning economic torts handed down in 2007 by, respectively, the UK Judicial Committee of the House of Lords and the English Court of Appeal. An "economic tort" or "intentional tort" can be perpetrated by a party (D) if D causes economic loss to another (P) in a situation where D is in neither a contractual nor other legal relationship with P.The first of those previous client updates considered, in particular, the economic torts of (i) procuring or inducing a breach of contract between P and a thi
Client Alert | July 6, 2009
At an open meeting held on July 1, 2009, the Securities and Exchange Commission ("SEC") approved two sets of rule proposals and one final rule amendment. These include: Proposed amendments to the SEC's proxy rules to implement legislation requiring companies that have received financial assistance under the Troubled Asset Relief Program ("TARP") to hold an advisory shareholder vote on executive compensation (also known as "Say on Pay");Proposed amendments to the SEC's proxy rules enhancing compensation and corporate governance disclosures and addressing certain rules governing proxy solicitations; andApproval of changes to New York Stock Exchange ("NYSE") Rule 452 that eliminate broker discretionary voting in director elections.The SEC un
Client Alert | July 2, 2009
Gibson, Dunn & Crutcher is closely monitoring risks and opportunities arising from the recent and dramatic reshaping of our capital and credit markets. We are providing updates on key transactions as well as regulatory and other legal developments that we believe could prove useful as financial institutions, investors, financial sponsors and other entities navigate these transformative times.This update discusses the recently disclosed bids in the Federal Deposit Insurance Corporation's May 2009 auction of BankUnited Financial Corp.
Client Alert | July 1, 2009
Los Angeles of counsel Brett H. Oberst and associate Charles Abbott III are the authors of "U.S. Supreme Court Addresses Availability of Cost-Benefit Analysis in Environmental Laws" [PDF] published in the July 2009 issue of Mealey's Pollution Liability Report.
Client Alert | July 1, 2009
Orange County partner Jeffrey T. Thomas and associate Joshua A. Jessen are the authors of "New Hurdle to Limiting Foreign Infringement" [PDF] published in the July 2009 issue of the Orange County Business Journal.
Client Alert | July 1, 2009
New York partner Jonathan C. Dickey is co-author of "'Inquiry Notice' on Trial: The Supreme Court to Clarify Standards for Statute of Limitations in Securities Class Actions" [PDF] published in the July/August 2009 issue of Thomson Reuters' Securities Litigation Report.
Client Alert | July 1, 2009
In a much-watched employment discrimination case confronting the tension between the disparate treatment and disparate impact theories under Title VII of the Civil Rights of 1964, the Supreme Court has ruled that an employer may not resort to intentional discrimination in order to avoid an unintentional, disparate impact absent "a strong basis in evidence" to believe it will be subject to liability if it fails to take the race-conscious, corrective action. Ricci v. DeStefano, No.
Client Alert | June 30, 2009
Alert: Potential Trap for the Unwary re Inaccessible InformationGovernor Schwarzenegger yesterday signed into law Assembly Bill 5, the "Electronic Discovery Act," enacting significant electronic discovery amendments to the California Code of Civil Procedure. Because the legislature deemed it "urgency" legislation, it is effective immediately. Although the legislation largely follows the 2006 electronic discovery amendments to the Federal Rules of Civil Procedure, it differs in its treatment of inaccessible information (such as backup tapes) and in its safe harbor for lost information. Of particular note, the Bill requires parties in their written responses to document requests to object to the production of inaccessible information to preserve th
Client Alert | June 30, 2009
On June 24, 2009, the Internal Revenue Service ("IRS") announced that it was extending the June 30, 2009 deadline for filing Reports of Foreign Bank and Financial Accounts ("FBAR"), TD F 90-22.1, to September 23, 2009, for certain taxpayers, i.e., taxpayers that properly report and pay tax on 2008 income, but that only recently learned that they have FBAR filing obligations and do not have sufficient time to gather the information necessary to complete the form. The extension follows remarks made in mid-June by IRS representatives and confirmed on Friday, June 26, by an IRS spokesperson that, based on the instructions to the revised FBAR form that was issued in October 2008, foreign hedge funds and private equity funds are included in the definition of forei
Client Alert | June 29, 2009
On June 22, 2009, the U.S. Supreme Court handed down its decision in an important Clean Water Act case, Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, upholding a discharge permit issued by the U.S.
Client Alert | June 26, 2009
Munich partner Philip Martinius and associate Jan Querfurth are the authors of "Germany and Austria: Broad Measures" [PDF] published in the June 25, 2009 issue of Legal Week.
Client Alert | June 25, 2009